AUGMENTED REALITY INCITEMENT: HOW THE CREATOR OF POKÉMON GO, AND THOSE WHO FOLLOW, ARE OPEN TO TORTIOUS LIABILITY
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9 GILMORE PUBLISH READY (12.29) MACRO PUBLISH READY (DO NOT DELETE) 12/29/2017 3:44 PM
AUGMENTED REALITY INCITEMENT:
HOW THE CREATOR OF POKÉMON GO,
AND THOSE WHO FOLLOW, ARE OPEN TO
TORTIOUS LIABILITY
Imagine a painting consisting of a new-age paint that changes colors
randomly and at a faster rate when viewed while moving around the room.
It would be questionable to hold the painter liable for a viewer’s injuries
resulting from tripping while moving around the room. This liability would
chill the painter’s artistic expression, violating her First Amendment right of
free speech, solely based on the materials the painter used. Such a disturbing
conclusion may be the result for augmented reality companies because a
similar use of augmented reality technology has also lead to a significant
amount of negligent injuries.1
Pokémon GO, the frontrunner in augmented reality applications,2
utilizes technology which, has led to many casualties.3 Pokémon GO uses
the technology in players’ smartphones to layer fictional characters called
1. Companies that utilize “augmented reality” technology seamlessly blend virtual objects
with users’ physical surroundings utilizing electronic devices, such as smartphones, as the medium.
See Joshua Goldman & John Falcone, Virtual Reality Doesn’t Mean What You Think It Means,
CNET (Mar. 9, 2016, 12:49 PM), https://www.cnet.com/news/virtual-reality-terminology-vr-vs-ar-
vs-360-video/.
2. See Luke Kawa & Lily Katz, These Charts Show that Pokemon Go is Already in Decline,
BLOOMBERG MARKETS (Aug. 22, 2016, 10:19 AM), http://www.bloomberg.com/news/articles/
2016-08-22/these-charts-show-that-pokemon-go-is-already-in-decline. Pokémon GO had
45,000,000 daily users at its peak, has been the top-grossing application on iTunes multiple times,
and has made $600,000,000 in revenue faster than any other mobile application. Id.; Eddie Makuch,
Pokémon Go Back to No. 1 on Top-Grossing Chart After Halloween Update, GAMESTOP (Oct. 28,
2016), http://www.gamespot.com/articles/pokemon-go-back-to-no-1-on-top-grossing-chart-
afte/1100-6444908; Dean Takahashi, Pokémon Go is the Fastest Mobile Game to Hit $600 Million
in Revenues, VENTURE BEAT (Oct. 20, 2016, 6:10 AM), http://venturebeat.com/2016/10/20/
pokemon-go-is-the-fastest-mobile-game-to-hit-600-million-in-revenues/.
3. See POKÉMON GO DEATH TRACKER, pokemongodeathtracker.com (last visited Feb. 24,
2017).
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“pokémon” onto a birds-eye-view of the players’ surroundings.4 Pokémon
randomly appear in-game based on the physical characteristics of the players’
environments.5 Pokémon GO players must constantly look at their phones to
adequately prepare themselves to catch pokémon,6 and Pokémon GO further
encourages players to pay attention to their phones by showing the nearby
pokémon within the “sightings” feature.7 The high level of attention required
to play Pokémon GO has resulted in players getting shot and killed,8 falling
off a cliff,9 crashing cars,10 and numerous other injuries11 because they were
not paying attention to their surroundings.12 But holding Niantic, the creator
of Pokémon GO, liable for these injuries is as absurd as holding the painter
liable for injuries suffered by the viewers of her painting. Nonetheless,
current case law leaves Niantic and the painter open to liability.13
The United States Supreme Court made clear in Brandenburg v. Ohio
that a speaker may be criminally liable for her speech when she intends to
cause “imminent lawless action,” and that action is likely to occur.14 This
preliminary requirement for a speaker to be liable for her speech is known as
4. Robert Levine, The Mapping Expert Behind Pokémon Go, BLOOMBERG (July 21, 2016,
3:10 PM), http://www.bloomberg.com/news/articles/2016-07-21/the-mapping-expert-behind-pok-
mon-go.
5. Finding and Catching Wild Pokémon, POKÉMON GO, https://support.pokemongo.
nianticlabs.com/hc/en-us/articles/221957648-Finding-and-Catching-wild-Pok%C3%A9mon (last
visited Nov. 11, 2016).
6. Luke Kerr-Dineen, Here’s Why Everyone Is So Obsessed with the New “Pokemon Go”
App, USA TODAY SPORTS: FOR THE WIN (July 11, 2016, 12:55 PM),
http://ftw.usatoday.com/2016/07/i-downloaded-the-pokemon-go-app-and-its-actually-really-fun.
7. Dave Thier, How “Sightings” Works in “Pokémon GO,” FORBES (Aug. 11, 2016, 12:03
PM), http://www.forbes.com/sites/davidthier/2016/08/11/nearby-tracker-tracking-how-sightings-
works-in-pokemon-go/#61318b7c6ad3.
8. Pokémon Go Player Killed in San Francisco’s Aquatic Park, CBS SF BAY AREA (Aug. 7,
2016, 10:39 PM), http://sanfrancisco.cbslocal.com/2016/08/07/man-shot-dead-near-sf-aquatic-
park/.
9. Janissa Delzo, Men Fall from Cliff Playing Pokémon Go, CNN (July 16, 2016, 9:43 PM),
http://www.cnn.com/2016/07/15/health/pokemon-go-players-fall-down-cliff/.
10. Pokémon Go Player Crashes Car into School While Playing Game, THE GUARDIAN (July
28, 2016, 18:28 EDT), https://www.theguardian.com/australia-news/2016/jul/29/pokemon-go-
player-crashes-car-into-school-while-playing-game.
11. See POKÉMON GO DEATH TRACKER, supra note 3.
12. See Petr Svab, Pokemon GO Causes Havoc as Players Trip Over Augmented Reality, THE
EPOCH TIMES (July 15, 2016, 11:29 PM), http://www.theepochtimes.com/n3/2115472-pokemon-
go-causes-havoc-as-players-trip-over-augmented-reality/?utm_expvariant=D002_02&utm_expid=
21082672-18.dmPUWQm0QDq0pZBHW0FDfA.1&utm_referrer=
https%3A%2F%2Fwww.google.com%2F; Kerr-Dineen, supra note 6.
13. See infra Part II.
14. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).9 GILMORE PUBLISH READY (12.29) (DO NOT DELETE) 12/29/2017 3:44 PM
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“incitement.”15 Incitement can be reduced to three elements: (1) intent to
incite, (2) imminence of the incited action, and (3) likelihood the incited
action will occur.16 The incitement requirement is intended to allow “abstract
advocacy of violence in the advancement of political and social causes, on
the one hand, [but not] actual incitement on the other.”17 Courts following
Brandenburg have required plaintiffs to prove incitement is present when
suing an entertainment company for negligent harm caused by that
company’s products.18 Incitement’s elements are satisfied when applied to
new uses of augmented reality technology without fulfilling the spirit of
incitement,19 and thus this note proposes various ways to remedy this
disconnection.20
Profitable, yet problematic features of Pokémon GO are likely to satisfy
the elements of incitement without satisfying the policy underlying this
requirement.21 Namely, Niantic intends to cause negligent harm to Pokémon
GO players because it is substantially certain22 such harm will result. Niantic
is substantially certain harm will result from Pokémon GO because Pokémon
GO incentivizes players to move around their environments with their
attention placed solely on their phones.23 Moreover, the in-game incentives
that encourage players to move have a limited shelf-life and spawn in random
locations, and thus the game calls for “imminent” action from the players.24
And finally, it is common sense that harm will likely result because Pokémon
GO demands the players’ attention that would otherwise be focused on the
dangers surrounding the players in every-day life.25 Yet, Pokémon GO, a
family-friendly game which encourages exercise, appears to be far less
15. See generally Rodney A. Smolla, Should the Brandenburg v. Ohio Incitement Test Apply
in Media Violence Tort Cases?, 27 N. KY. L. REV. 1, 8 (2000).
16. Id. at 10.
17. Id. at 12-13.
18. In other words, the First Amendment bars a negligence claim for harm caused by an
entertainment company’s speech unless the plaintiff proves the incitement standard is satisfied. See
James v. Meow Media, Inc., 300 F.3d 683, 698 (6th Cir. 2002); McCollum v. CBS, Inc., 249 Cal.
Rptr. 187, 193 (Ct. App. 1988); Watters v. TSR, Inc., 715 F. Supp. 819, 823 (W.D. Ky. 1989);
Sanders v. Acclaim Entm’t, Inc., 188 F. Supp. 2d. 1264, 1279-81 (D. Colo. 2002). For reference, a
claim of negligence against a company using augmented reality like Pokémon GO could, for
example, be for the company unreasonably luring players across extremely dangerous environments
such as freeways, electrical power plants, and cliffs.
19. See infra Part II.
20. See infra Part III.
21. See infra Part II.
22. Intent is proven when the defendant either desired or was substantially certain the harm
would result. See Garratt v. Dailey, 279 P.2d 1091, 1093 (Wash. Ct. App. 1955).
23. Svab, supra note 12; Kerr-Dineen, supra note 6.
24. See infra Part II.
25. See Svab, supra note 12; Kerr-Dineen, supra note 6.9 GILMORE PUBLISH READY (12.29) (DO NOT DELETE) 12/29/2017 3:44 PM
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dangerous than a hitman manual, which was not held to incite imminent
lawless action.26 Nonetheless, Niantic’s use of augmented reality
technology, which requires players to interact with their environment through
electronic devices, fulfills incitement’s requirements without satisfying the
policy underlying the incitement requirement.27
This note highlights three potential solutions to provide augmented
reality companies with the First Amendment protections they were intended
to retain. The first solution would be to deem imminence not satisfied when
an augmented reality company uses “fixed” algorithms, which spawn the in-
game incentives. The second solution necessitates legislative or judicial
action eliminating or reinterpreting the intent element, within the meaning of
incitement and as applied to augmented reality products, as proven only when
the entertainment company desired the harm that resulted. The third solution
requires legislative or judicial action reinterpreting incitement’s intent
element to be proven in the augmented reality context only when a reasonable
augmented reality company is “virtually” certain, as opposed to
“substantially” certain, that harm would result from its product. As will be
discussed, the third solution is the best way of reinvigorating the First
Amendment protections driving the incitement requirement in the augmented
reality framework.
This note argues that incitement must be harder to prove against
augmented reality companies. This change must occur because when
incitement is applied to those companies, their artistic expression is likely to
be silenced in a way unintended by the creators of the incitement
requirement.28 Part I explains the incitement requirement and the policy
behind it. Part II illuminates how key elements of Pokémon GO, which are
bound to be reanimated in other augmented reality products, fulfills the
incitement requirement but not its policy. Part III shows how to alleviate this
contradiction of law and policy.29
26. See Rice v. Paladin Enters., Inc., 128 F.3d 233, 267 (4th Cir. 1997) (denying the
entertainment defendant’s motion for summary judgment).
27. See infra Parts I-II.
28. See infra Parts I-II.
29. While this note addresses incitement as applied to augmented reality companies, it does
not address whether those companies would actually be liable for damages under a tort action. For
two discussions on the merits of tortious claims against Pokémon GO, see Mark Talise, Pokémon
GO (Carefully), DAILY JOURNAL (Sept. 12, 2016), http://www.hbblaw.com/files/Uploads/
Documents/2016-09-12%20Talise%20Pokemon%20Final%20Daily%20Journal.pdf; see also Eric
Lindenfeld, Pokemon Go’s Product Liability Woes, LAW 360 (Aug. 3, 2016, 3:56 PM),
https://www.law360.com/articles/824588/pokemon-go-s-product-liability-woes.9 GILMORE PUBLISH READY (12.29) (DO NOT DELETE) 12/29/2017 3:44 PM
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I. WHAT IS INCITEMENT?
The First Amendment extends broad protection to artistic expression,30
which includes video games.31 This protection is so extensive that only the
“human creative impulse” dictates what media has First Amendment
protection.32 Yet, artistic expression can be regulated in specific situations.33
First Amendment protection does not apply to speech that incites
imminent lawless action.34 Incitement consists of a three prong test.35
Namely, the incitement requirement is satisfied when the speech is: (1)
“intended toward the goal of producing . . . lawless conduct,” (2) that lawless
conduct is “imminent,” and (3) that lawless conduct is likely to occur.36 This
test was initially formulated in Brandenburg v. Ohio, where the Supreme
Court directed its opinion towards speech advocating imminent criminal
action.37 Courts now apply incitement to tortious actions38 and courts have
acknowledged that it is possible for this requisite intent to be inferred from
the content of the entertainment product.39
Tortious actions, such as negligence, have been brought against
entertainment companies for harm allegedly caused by their products.40 It is
difficult to prove artistic expression incites negligent harm.41 For one, artistic
expression is not typically translated in real time42 and, thus, the speech is not
30. See Sheldon H. Nahmod, Artistic Expression and Aesthetic Theory: The Beautiful, the
Sublime and the First Amendment, 1987 WIS. L. REV. 221, 244-45 (1987); Freedom of Expression
in the Arts and Entertainment, ACLU, https://www.aclu.org/other/freedom-expression-arts-and-
entertainment (last visited Nov. 27, 2016).
31. Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 790 (2011).
32. ACLU, supra note 30; see, e.g., Candy Lab Inc. v. Milwaukee Cty., No. 17-CV-569-JPS,
2017 U.S. Dist. LEXIS 113122, at *2, *13-18 (E.D. Wis. July 20, 2017) (finding an augmented
reality video game similar to Pokémon GO has First Amendment protection).
33. Government and the Arts, HARVARD LAW SCHOOL, http://www.law.harvard.edu/
faculty/martin/art_law/public_art.htm (last visited Nov. 27, 2016).
34. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
35. See id.
36. McCollum v. CBS, Inc., 249 Cal. Rptr. 187, 193 (Ct. App. 1988).
37. See 395 U.S. at 446-47.
38. See James v. Meow Media, Inc., 300 F.3d 683, 698 (6th Cir. 2002); McCollum, 249 Cal.
Rptr. at 193; Watters v. TSR, Inc., 715 F. Supp. 819, 823 (W.D. Ky. 1989); Sanders v. Acclaim
Entm’t, Inc., 188 F. Supp. 2d. 1264, 1279-81 (D. Colo. 2002).
39. See Rice v. Paladin Enters., Inc., 128 F.3d 233, 265-66 (4th Cir. 1997); Waller v.
Osbourne, 763 F. Supp. 1144, 1151 (M. D. Ga. 1991); Jennifer Jones, Evolving Entertainment
Technology: Can New Types of Fun Lead to New Types of Liability?, 13 YALE J. L. & TECH. 188,
212-13 (2011).
40. See James, 300 F.3d at 698; Rice, 128 F.3d at 265-66; McCollum, 249 Cal. Rptr. at 193.
41. See generally ROBERT LIND ET AL., ENTERTAINMENT LAW: LEGAL CONCEPTS &
BUSINESS PRACTICES §§ 14:7-14:13 (3d ed. 2015).
42. Id. § 14:7.9 GILMORE PUBLISH READY (12.29) (DO NOT DELETE) 12/29/2017 3:44 PM
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calling for imminent lawless action.43 Moreover, courts have been hesitant
to rule that an entertainment company intended the speech.44 Incitement acts
as defense for speakers from being liable for others’ actions resulting from
the speaker’s speech.45
In formulating the incitement requirement, the Brandenburg Court
designed a high hurdle for plaintiffs to jump in order to obtain relief.46 Even
the racist violence spewed by a KKK member in Brandenburg did not rise to
the level of incitement, but rather was just “abstract teaching,” protected by
the First Amendment.47 If the racist advocacy of violence by the Klansman
in Brandenburg was not held to incite,48 one could only imagine what it
would take for an entertainment company to incite imminent lawless action.
In fact, virtually all courts considering whether a defendant incited
imminent lawless action have held no such incitement was present.49
Moreover, no video game company has been held to incite50 and the broader
entertainment context contains only two cases indicating incitement was
present.51 Of those two cases, one court denied the entertainment defendant’s
motion for summary judgment52 and another court found an entertainment
defendant liable for harm but did not even address the incitement
requirement.53 The application of incitement resulting in so few cases where
a defendant is found to incite demonstrates the intent behind incitement – to
protect artistic expression unless it is outrageously atrocious.54
43. Davidson v. Time Warner, Inc., No. Civ.A. V-94-006, 1997 WL 405907, at *19-22 (S.D.
Tex. Mar. 31, 1997).
44. Robert Firester & Kendall T. Jones, Catchin’ the Heat of the Beat: First Amendment
Analysis of Music Claimed to Incite Violent Behavior, 20 LOY. L.A. ENT. L. REV. 1, 14 (2000).
45. See Jeffrey Haag, If Words Could Kill: Rethinking Tort Liability in Texas for Media
Speech that Incites Dangerous or Illegal Activity, 30 TEX. TECH L. REV. 1421, 1463-64 (1999).
46. See id.
47. Brandenburg v. Ohio, 395 U.S. 444, 446-48 (1969). Some of the toxic language included
“[t]his is what we are going to do to the niggers,” “[b]ury the niggers,” “[w]e intend to do our part,”
and the “[n]igger will have to fight for every inch he gets from now on.” Id. at 446 n.1.
48. Id. at 446-47.
49. Firester & Jones, supra note 44, at 11.
50. Lindsay E. Wuller, Note, Losing the Game: An Analysis of the Brown v. Entertainment
Merchants Association Decision and its Ramifications in the Area of “Interactive” Video Games,
57 ST. LOUIS L.J. 457, 481 (2013).
51. Rice v. Paladin Enters., Inc., 128 F.3d 233 (4th Cir. 1997); Weirum v. RKO General, Inc.,
539 P.2d 36 (1975).
52. See Rice, 128 F.3d 233.
53. Weirum, 539 P.2d 36.
54. Sufficiently atrocious speech sought to be silenced by applying the incitement requirement
is speech that is essentially “preparing a group for violent action and steeling it to such action.” See
Noto v. United States, 367 U.S. 290, 298 (1960).9 GILMORE PUBLISH READY (12.29) (DO NOT DELETE) 12/29/2017 3:44 PM
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A. Imminence Element of Incitement
It is difficult to prove artistic expression imminently incited lawless
action because artistic expression is typically not transmitted to individuals
in real time, but rather recorded.55 For example, the court in McCollum v.
CBS, Inc. held that musical lyrics and poetry cannot imminently incite action
when they are recorded.56 More specifically, recorded content is “physically
and temporarily remote” from consumers, providing for “infinitely variable”
conditions where those products could be consumed.57 The McCollum court
held that the defendant could not have foreseen the lawless action that
occurred because of the remote recording of the lyrics.58 Thus, imminence is
not met when enough time passes between the recording and the consumption
of the recording such that the expression within the recording is physically
and temporarily remote from the consumption.59
Imminence is also not met when a significant amount of time passes
between when the entertainment product is first consumed and when the
lawless action takes place.60 For example, the court in Watters v. TSR, Inc.
held imminence was not present when five years passed between when the
deceased consumed the product and when the deceased committed suicide.61
That court indicated imminence may have been met if the game had been
played only “a few times” and the following lawless action resulted
“immediately.”62 But even if imminence is shown, a plaintiff must still prove
the entertainment company had the requisite intent.63
B. Intent Element of Incitement
A plaintiff must also show the video game manufacturer intended to
incite imminent lawless action.64 This tortious intent can be proven if the
manufacturer desired the harm or was substantially certain the harm will
result from its actions.65 A tortfeasor is substantially certain that harm will
result from her actions when she knows those actions have a high probability
55. See LIND ET AL., supra note 41, § 14:7.
56. See McCollum v. CBS, Inc., 249 Cal. Rptr. 187, 193 (Ct. App. 1988).
57. Id. at 194 n.10.
58. Id.
59. Id. at 194.
60. See Watters v. TSR, Inc., 715 F. Supp. 819, 823 (W.D. Ky. 1989); see also Rice v. Paladin
Enters., Inc., 128 F.3d 233, 245 (4th Cir. 1997).
61. Watters, 715 F. Supp. at 823.
62. Id. (emphasis omitted).
63. See Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969).
64. McCollum, 249 Cal. Rptr. at 193.
65. Garratt v. Dailey, 279 P.2d 1091, 1093 (Wash. Ct. App. 1955).9 GILMORE PUBLISH READY (12.29) (DO NOT DELETE) 12/29/2017 3:44 PM
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of harm to others, yet she consciously disregards that likelihood of harm. 66
Thus, a plaintiff proves a video game manufacturer intended to incite
imminent lawless action when the plaintiff shows the manufacturer
consciously disregarded a high probability of harm.67 These tort principles
are helpful when applied to our hypothetical tortfeasor – the painter.
Does the painter who used new-age paints intend to harm viewers of her
work? It can be inferred that she does. This is because the new-age paint
provides for a high probability of harm because it incentivizes viewers to
move around the room by enriching the viewing experience with quicker
changing colors when the viewers do, in fact, move while viewing. Using
the paint, despite this obvious high probability of harm, amounts to a
conscious disregard for the welfare of the viewers. This demonstrates the
painter was substantially certain the harm would result and, thus, intended
the harm. While the viewers could simply view the painting while standing
still, they would not be experiencing the painter’s artistic expression,
manifested through her painting and all of its intricacies, to its fullest
potential. But even if imminence and intent are shown, the plaintiff must still
prove that it is likely that harm would occur.68
C. Likelihood Element of Incitement
Even after proving an entertainment company intends to incite imminent
unlawful action, that unlawful action must be likely to occur for the
incitement requirement to be satisfied.69 Foreseeability dictates whether it is
likely the incited action will occur.70 While courts have been hesitant to find
that an entertainment company could have reasonably foreseen its speech
would cause imminent lawless action,71 new technology calls for new
considerations.72
She projects artistic expression with materials that
encourage viewers to move. It is foreseeable that when those viewers move
66. Bradley v. Am. Smelting and Ref. Co., 709 P.2d 782, 786 (Wash. 1985).
67. See McCollum, 249 Cal. Rptr. at 193; see also Garratt, 279 P.2d at 1093; Bradley, 709
P.2d at 786.
68. Brandenburg, 395 U.S. at 447.
69. See id.; see also Sanders v. Acclaim Entm’t, Inc., 188 F. Supp. 2d 1264, 1276 (D. Colo.
2002).
70. See Watters v. TSR, Inc., 904 F.2d 378, 381 (6th Cir. 1990); see also Sanders, 188 F.
Supp. 2d at 1271-73, 1281; Davidson v. Time Warner, Inc., No. Civ.A. V-94-006, 1997 WL 405907,
at *13 (S.D. Tex. Mar. 31, 1997).
71. See Watters, 904 F.2d at 381; see also Sanders, 188 F. Supp. 2d at 1281; Davidson, 1997
WL 405907 at *13.
72. See, e.g., Riley v. California, 134 S. Ct. 2473, 2478 (2014).9 GILMORE PUBLISH READY (12.29) (DO NOT DELETE) 12/29/2017 3:44 PM
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around the room, they will bump into each other or trip, resulting in cuts,
bruises, and maybe even broken bones. Thus, it is likely the incited unlawful
action, negligent harm, would result from the painter utilizing the new-age
paint. Therefore, the third element of incitement is satisfied for our poor
painter.
This marks the final nail crucifying the painter’s First Amendment
protections. More specifically, the painter would be subject to tortious
liability regardless of her First Amendment protections because, as shown
above, all three elements of incitement are satisfied. Yet, the broad
protections against this liability, through incitement, were not intended to be
satisfied according to the medium of expression.73 The painters’ mere use of
the technologically advanced paint is difficult to perceive as advocating
abstract violence, let alone actual incitement, when it simply encourages
movement.74 This disconnect between the application and spirit of
incitement requires a change in the law in order to adapt to new technologies
like the painter’s new-age paint, or, as will be seen in Part II, augmented
reality technology.
II. WHAT IS POKÉMON GO?
Similar to the painting that incites negligent harm because of the new-
age paint, Niantic incites negligent harm through Pokémon GO’s augmented
reality technology, which uses GPS technology and smartphone interactivity.
While Pokémon GO seems to be a family fun game that encourages people
to get out and get exercise,75 the fulfillment of the incitement requirement
makes it appear even more dangerous to society than the racist hateful speech
projected in Brandenburg.76 Yet, Pokémon GO does not look anywhere near
as dangerous as the racist venom spewed by the Klansmen in Brandenburg.77
Pokémon GO is an application for smartphones that is premised on
players hunting down pokémon, 78 which are digital monsters.79 Players work
to fill a digital storage device called a pokédex with each pokémon they
73. See Brandenburg, 395 U.S. at 447-49.
74. Smolla, supra note 15, at 12-13.
75. Pokémon Go Can Boost Health by Making Gamers Exercise, Says GP, THE GUARDIAN
(Aug. 10, 2016), https://www.theguardian.com/technology/2016/aug/10/pokemon-go-health-
players-exercise-obesity-walking.
76. See Brandenburg, 395 U.S. 444.
77. See id. at 446.
78. See Pokémon Go, POKÉMON, http://www.pokemon.com/us/pokemon-video-games/
pokemon-go/ (last visited Mar. 27, 2017).
79. See Parent’s Guide to Pokémon, POKÉMON, http://www.pokemon.com/us/parents-guide/
(last visited Mar. 27, 2017).9 GILMORE PUBLISH READY (12.29) (DO NOT DELETE) 12/29/2017 3:44 PM
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successfully catch.80 Pokémon GO utilizes a birds-eye-view screen, similar
to the Google Maps platform, to show the players’ surroundings, super-
imposed pokémon,81 and a pokémon tracker showing how close pokémon are
and their identities.82 While a player could remain in one place in hopes that
pokémon pop up on the player’s screen,83 players are encouraged to move
around their surroundings and catch different pokémon.84
The in-game incentives, which encourage players to move around their
surroundings, manifest in a few ways.85 Two key incentives deal with where
a player is and whether the player is moving.86 More specifically, different
pokémon can be found in different environments, like at a pier or in a desert.87
Furthermore, playing the game while moving triggers more pokémon to
spawn on a player’s screen,88 allowing those players to potentially fill their
pokédex at a faster rate. The “sightings” feature, which shows players what
pokémon are nearby, further incentivizes players to move because the
pokémon displayed by this tracker may spawn on the players’ screens if they
take a few steps.89 Unfortunately, the use of these seemingly harmless
aspects have resulted in Pokémon GO players becoming injured while
playing the game because players must pay most of their attention to the game
instead of their surroundings while moving around their environments.90
80. Id.
81. Candy Lab Inc. v. Milwaukee Cty., No. 17-CV-569-JPS, 2017 U.S. Dist. LEXIS 113122,
at *4 (E.D. Wis. July 20, 2017); Robert Levine, The Mapping Expert Behind Pokémon Go,
BLOOMBERG (July 21, 2016, 3:10 PM), http://www.bloomberg.com/news/articles/2016-07-21/the-
mapping-expert-behind-pok-mon-go.
82. Thier, supra note 7.
83. See, e.g., Megan Willett, How to Play “Pokémon GO” Without Moving an Inch, BUSINESS
INSIDER (July 11, 2016, 12:38 PM), http://www.businessinsider.com/play-pokemon-go-without-
moving-2016-7.
84. Explore!, POKÉMON GO, http://www.pokemongo.com/en-us/explore/ (last visited Feb. 25,
2017).
85. There are more types of in-game incentives that encourage a player to move around their
surroundings. See Chaim Gartenberg, How to Play Pokémon Go, THE VERGE (July 13, 2016, 9:04
AM), http://www.theverge.com/2016/7/11/12149424/pokemon-go-tips-tricks-explainer-nintendo.
However, this note focuses on two types of in-game incentives because these are the only two of
which have limited shelf-lives. As will be seen later in this section, incentives with a limited shelf-
life are the most problematic aspect of Pokémon GO in regards to incitement.
86. See Explore!, supra note 84; Scott Tailford, 15 Crucial Tips & Tricks the Game Doesn’t
Tell You, WHAT CULTURE (July 7, 2016), http://whatculture.com/gaming/pokemon-go-15-crucial-
tips-tricks-the-game-doesn-39-t-tell-you?page=9.
87. See Explore!, supra note 84.
88. Tailford, supra note 86.
89. Thier, supra note 7.
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A. Imminence Element – Satisfied
Pokémon GO satisfies the imminence element of incitement because the
game actively encourages players to move around their surroundings.91
Unlike the defendant in McCollum, whose musical product did not actively
encourage the consumer to act,92 Pokémon GO calls for immediate action
from its players by premising the entire game on action – for the players to
“go.”93 Moreover, pokémon are not fixed or recorded like the lyrics were in
McCollum.94 Rather, pokémon appear based on a variety of factors, such as
where a player is, if the player is moving, and if the player is using in-game
features that attract pokémon to the player’s screen.95 Thus, this expression
manifested in Pokémon GO is constantly changing based on a variety of
factors96 rather than the expression in McCollum, which was “physically and
temporarily remote” from consumers since it was fixed by a recording.97
Nonetheless, Niantic may argue that the pokémon are fixed by a
recording because pokémon spawn according to algorithms consisting of
crowd-sourced information, not a human operator actively drawing each
player to peril.98 While there is an element of mechanical spawning of
pokémon, there are still a variety of factors indicating where and when
pokémon spawn in an individual player’s game, including the player’s
movement or lack thereof.99 Thus, this algorithm acts just as the paint does
in the painting – constantly changing and incentivizing constant movement.
Both are fixed in that they are already in existence and encouraging
movement, but regardless, Niantic and the painter still find themselves in hot
water.
Even if a court were to find that an augmented reality application, like
Pokémon GO, does not imminently incite because the expression is
91. See Explore!, supra note 84; Matt Kamen, How to Play Pokémon Go: From Catch Bonuses
to Eggs, Pokéstops, Gyms and Buddies, WIRED (Feb. 17, 2017), http://www.wired.co.uk/article/
how-to-play-pokemon-go-pikachu-tips.
92. See McCollum v. CBS, Inc., 249 Cal. Rptr. 187 (Ct. App. 1988). The argument that lyrics
encourage action in that the consumer must, at a minimum, press the play button may, concededly,
constitute action. However, this action is far less active than that of Pokémon GO’s, which
potentially may draw a player across the entire globe. See Gartenberg, supra note 85.
93. See supra notes 84-89 and accompanying text.
94. Finding and Catching Wild Pokemon, supra note 5.
95. See id.
96. See id.
97. McCollum, 249 Cal. Rptr. at 194 n.10.
98. Jimmy Blake, How Pokemon Go Locations Work (Probably), BBC (July 15, 2016),
http://www.bbc.co.uk/newsbeat/article/36803747/how-pokemon-go-locations-work-probably.
99. See supra notes 84-89 and accompanying text.9 GILMORE PUBLISH READY (12.29) (DO NOT DELETE) 12/29/2017 3:44 PM
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sufficiently recorded, imminence would still be present.100 The time between
when Pokémon GO was first released and when Pokémon GO players started
to get injured from playing the game was brief. More specifically, injuries
from Pokémon GO are so systematic that within two weeks of the game’s
release on July 6, 2016,101 a list of common injuries and how to avoid them
emerged.102 Moreover, within five months of the release date, lawyers
capitalized on these common injuries by advertising their services to those
injured players.103 This brief amount of time between when Pokémon GO
was released, when the injuries occurred, and when they became normalized
through published preventative practices and the legal field accepting them
as normal shows imminence is present.104
B. Intent Element – Satisfied
Niantic fulfills the requisite intent for incitement because it is
substantially certain that harm will result from the augmented reality
technology in Pokémon GO. Applications like Pokémon GO require gamers
to be so involved in the game that they are not paying attention to their
environment and the dangers around them.105 The creators of Pokémon GO
have acknowledged this as evidenced by two in-game warnings telling
players to be aware of their surroundings.106 But even with the warnings, any
100. As seen above, courts have adopted at least two different ways to show the imminence
element is present in regards to the context of speech from an entertainment company. See supra
Part II.
101. Pokémon Go, supra note 78.
102. Ashitha Nagesh, How to Avoid the Five Most Common Pokemon Go Injuries, METRO
(July 19, 2016), http://metro.co.uk/2016/07/19/how-to-avoid-the-five-most-common-pokemon-go-
injuries-6015554/.
103. Pokémon Go and Car Accidents, BARRY P. GOLDBERG (July 19, 2016),
http://barrypgoldberg.com/pokemon-go-car-accidents/; POKEMON GO LAWYERS,
http://mobilegamelawyers.com/ (last visited Feb. 25, 2017); Alyssa Bereznak, Lawyers Are Stoked
for “Pokémon Go” Cases, THE RINGER (July 23, 2016), https://theringer.com/lawyers-are-ready-
for-your-pok%C3%A9mon-go-lawsuits-e01a35f3561f#.jxxcrcck1.
104. This is unlike the plaintiff in Watters who had been playing the game for five years. See
Watters, 715 F. Supp. at 823. The Pokémon GO injuries resulted in a much shorter time frame after
consumption of the game. That is so even if it is assumed that these injured players began playing
the game right when Pokémon GO was released and did not stop playing until injured. Nonetheless,
Niantic could argue that the injuries did not occur “immediately” after consumption of the game, as
the Watters court emphasized must be present for this particular way of showing imminence. See
id. However, there is insufficient case law to indicate if this claim would succeed.
105. Michael Hirtzer, Amid Frenzy, Pokemon Go Leads to Robberies and Injuries, REUTERS
(July 12, 2016), http://www.reuters.com/article/us-nintendo-pokemon-crime-idUSKCN0ZR26K.
106. George Norman, 12 Important Safety Tips for All Pokemon Go Players, FIND MY SOFT
(Aug. 1, 2016), http://www.findmysoft.com/news/12-Important-Safety-Tips-for-All-Pokemon-Go-
Players/.9 GILMORE PUBLISH READY (12.29) (DO NOT DELETE) 12/29/2017 3:44 PM
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application demanding the same level of attention from its players, as
Pokémon GO does, while incentivizing constant movement would be
substantially certain that players will give that attention and move.
Furthermore, the on-going Pokémon GO injuries, coupled with Niantic’s
continued running of the game, demonstrates that Niantic consciously
disregards the great risks the game poses.107 As previously highlighted,
Pokémon GO injuries are becoming part of the commonplace.108 While some
injuries have resulted from situations even an attentive player may fall victim
to,109 other injuries have resulted from players simply not paying attention to
their surroundings.110 Any manufacturer of a product whose consumers are
suffering injuries on a consistent basis, like Pokémon GO players, would be
substantially certain that these harms would continue.111 Moreover, when
Niantic continues to run Pokémon GO without fully addressing these issues,
it is then consciously disregarding the substantial risk of these harms, thus
intending those harms.
But what is Niantic to do in this situation? Its response was to implement
warnings that players must acknowledge before playing the game.112 From
Niantic’s perspective, these warnings show that Niantic does not intend the
potential harms, but rather Niantic is doing its best to protect players (and
107. Bradley v. Am. Smelting and Ref. Co., 709 P.2d 782, 786 (Wash. 1985) (finding that
tortious intent is present when an actor knows her acts have a high probability of injury to others,
yet that actor acts with disregard to those injuries).
108. See supra notes 102-05 and accompanying text.
109. For example, multiple robbers have utilized in-game incentives to lure their victims to
particular areas where the robbers prey on those victims. See, e.g., Alan Yuhas, Pokémon Go:
Armed Robbers Use Mobile Game to Lure Players into Trap, THE GUARDIAN (July 11, 2016),
https://www.theguardian.com/technology/2016/jul/10/pokemon-go-armed-robbers-dead-body;
Lisa Fernandez, Pokémon Go Robberies on the Rise in Berkeley, Pokémon Go Theft Victim in San
Francisco Gets Phone Back, NBC (Aug. 11, 2016, 7:21 AM), http://www.nbcbayarea.com/news/
local/Man-Attacked-Robbed-of-Phone-Passport-Pants-in-San-Francisco-389855041.html.
110. See, e.g., Delzo, supra note 9; Pokémon Go Player Crashes Car into School While Playing
Game, supra note 10; Sheldon Ingram, Teenager Hit by Car Blames “Pokemon Go,”
PITTSBURGH’S ACTION 4 NEWS (July 13, 2016, 5:59 PM), http://www.wtae.com/article/teenager-
hit-by-car-blames-pokemon-go/7481057; Svab, supra note 12.
111. It is reasonable to assume that an augmented reality company would be substantially
certain its game would cause harm to its players if a previous augmented reality company utilizing
a substantially similar game caused harm to its players. See supra notes 86, 103, 108, and
accompanying text. However, even if substantial certainty cannot be imputed from another
augmented reality company’s conduct, the subsequent company will still fulfill substantial certainty
in the same way that the initial company fulfilled that standard. See infra notes 117-20, and
accompanying text.
112. Norman, supra note 106; Breanne L. Heldman, Pokemon Go Adds New Safety Warnings,
ENTERTAINMENT WEEKLY (July 31, 2016), http://www.ew.com/article/2016/07/31/pokemon-go-
new-safety-warnings.9 GILMORE PUBLISH READY (12.29) (DO NOT DELETE) 12/29/2017 3:44 PM
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itself) from potential harms that simply cannot be avoided.113 But even if
these warnings indicate Niantic does not intend harm, these warnings are
wholly ineffective in proving Niantic does not have the requisite intent for
incitement.114
Pokémon GO’s in-game warnings are not a valid defense against a
showing of incitement. In-game warnings are relevant for showing a player
assumed the risk of a game.115 However, this is relevant under a tort analysis,
which is addressed after a finding of incitement.116 In other words, the
warnings may help Niantic, and other companies using similarly problematic
augmented reality technology, in avoiding tortious liability, but the warnings
are not a defense to incitement.117
Learning from incitement’s applicability, Niantic and other similarly
situated augmented reality companies may tailor where in-game incentives
spawn as to minimize liability risks. However, this curating is unlikely. The
appeal of Pokémon GO, as well as games that will soon follow in its
footsteps, is that it is truly an open-world experience.118 Namely, players get
to hunt down pokémon in-game while exploring new uncharted
neighborhoods and other environments not otherwise known to the player.119
This experience is unlikely to be altered by Niantic, or other augmented
reality companies, because limiting the scope of these types of games will
also limit their appeal.
But even if augmented reality companies were to limit where their games
could be played, it is impracticable for those companies to account for all of
life’s dangers, regardless of how small the scope of the game is. While it
may be easy to not have pokémon spawn on a major freeway, it may not be
113. For example, broken bones, sprains, and fractures cannot be avoided by Niantic. See
generally LOUIS R. FRUMER & MELVIN I. FRIEDMAN, PRODUCTS LIABILITY § 12.04 (Matthew
Bender, rev. ed. 2001). Rather, it is the responsibility of the players to be aware of their
surroundings. Id.
114. Id.
115. See generally RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 18 (AM. LAW
INST. 2010).
116. See generally LIND ET AL., supra note 41, §§ 14:7-14:3.
117. See generally RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 18 (AM. LAW
INST. 2010).
118. Rachel Metz, Here’s Why Pokémon Go is Taking Off, MIT TECHNOLOGY REVIEW (July
12, 2016), https://www.technologyreview.com/s/601880/heres-why-pokemon-go-is-taking-off/.
119. Megan Jula, Pokémon Go Players Take Their Hunt to the Streets of New York, N.Y. TIMES
(July 11, 2016), http://www.nytimes.com/2016/07/12/nyregion/pokemon-players-take-their-hunt-
to-the-streets-of-newyork.html?utm_source=affiliate&utm_medium=ls&utm_campaign=hL3Qp0z
RBOc&utm_content=355861&utm_term=1&siteID=hL3Qp0zRBOc-8h2nA0z3s0VcAxRVL9.
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as simple to account for cliffs120 or other natural dangers that are less obvious.
Moreover, even if these companies were to account for these less obvious
dangers, they will likely slash their success by limiting how extensive their
game is. After all, the attention-grabbing part about these games is how you
might travel to a new and exciting neighborhood, park, city, state, or country
in the hunt of an ultra-rare pokémon.121 But since it is unlikely these dramatic
steps would be taken by an augmented reality company like Niantic, the
intent element of incitement will still be satisfied. And since imminence is
also met, Pokémon GO incites imminent lawless action if the final element
is present – that the incited action is likely to occur.122
C. Likelihood Element – Satisfied
Pokémon GO satisfies incitement’s likelihood element because it is
reasonably foreseeable that imminent lawless action would result from the
game. It is common sense that negligent harm would result from a game that
encourages players to move around while having to take attention away from
their surroundings to play the game successfully.123 While some injuries may
have an intervening cause, such as the robberies that have taken place,124 a
large amount of injuries do not have the same or any intervening causes.125
Yet, it does not seem right that Niantic would be deprived of First
Amendment protections because they encourage players to go outside and
catch pokémon.
Niantic’s expression in Pokémon GO fulfills the incitement requirement,
opening itself to liability for negligent harm. Yet, the speech within Pokémon
GO is far from the type of speech contemplated by the Brandenburg court
that should be chilled and punishable. Rather, the unique technological
qualities of Pokémon GO satisfy the incitement requirement. However, the
120. Delzo, supra note 9.
121. Brendan Morrow, “Pokemon Go” Rare Pokemon List: Where to Find Snorlax, Dratini,
Lapras & More, HEAVY (July 19, 2016), http://heavy.com/games/2016/07/pokemon-go-rare-
pokemon-list-location-map-chart-how-to-find-dratini-magnemite-electabuzz-hitmonchan-
hitmonlee-chansey-lapras-snorlax-porygon-mew-mewtwo-moltres-zapdos-articuno-ditto; Sean
Gibson, Pokemon Go: Full List of Pokemon Available to Catch, Including Region-Exclusives and
Details on Articuno, Zapdos and Moltres, THE TELEGRAPH (Sept. 6, 2016),
http://www.telegraph.co.uk/gaming/what-to-play/pokemon-go-full-list-of-original-151-pokemon-
available-to-catch/.
122. See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
123. See supra notes 6-12, 25 and accompanying text. To be more specific, the lawless action
indicated within this context includes a seemingly endless number of situations such as trespassing
on private property, suicide by walking onto a freeway, and even train wrecking.
124. See supra note 109.
125. See supra note 110.9 GILMORE PUBLISH READY (12.29) (DO NOT DELETE) 12/29/2017 3:44 PM
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spirit of incitement is not fulfilled because Pokémon GO hardily advocates
violence, and does far less that actually incite.126 First Amendment
protections are distorted when incitement is not present when a Klansman
says “we are going to . . . [b]ury the niggers,”127 while incitement is present
when a family-style video game using technology allows players to interact
with their environments in new ways. This inconsistency demands for a
change in the law.128
III. THE SOLUTIONS
The disconnect between the spirit backing the incitement requirement
and its application against augmented reality companies using profitable
features within Pokémon GO demands a change in the law.129 Two potential
ways of resolving this problem involve altering the imminence element of
incitement and altering the intent element of incitement.130 As will be seen,
the intent element is the best element to alter or reinterpret to provide
augmented reality companies the First Amendment protections they deserve.
If this problem is addressed as this note suggests, companies using
augmented reality technology will retain the same First Amendment
protections incitement provides for other forms of expression.131
A. Imminence Solution
Augmented reality companies would seemingly have the same First
Amendment protections as other entertainment companies if the algorithms
spawning in-game incentives would be deemed “recorded” or “fixed.” If the
algorithms utilized in augmented reality games are deemed recorded in the
126. See Brandenburg, 395 U.S. at 447-49.
127. See id. at 446-48.
128. See Planned Parenthood v. Casey, 505 U.S. 833, 854-55 (1992).
129. One major factor for overruling a prior Supreme Court case is present in this scenario. See
id. at 855 (indicating a reason to overrule precedent, and thus altering the law, is when facts have
so changed as to rob a rule of its “significant application or justification”). However, the other three
factors listed in Casey indicate that Brandenburg should not be overruled based on its application
to augmented reality technology. See id. at 854-55. Thus, a narrow abrogation, or carve-out, of the
general rule in found in Brandenburg is far more appropriate.
130. While this note does not foreclose the altering of the likelihood element of incitement as
a plausible solution, the intent and imminence elements are the aspects of incitement which are most
problematic when applying this threshold requirement to augmented reality technology. See supra
Part II. A solution involving the likelihood element may cause more problems than addressing the
problematic elements – like how balancing an unbalanced seesaw with increased weight on one
side, opposed to taking weight off the heavier side, causing more pressure on the seesaw.
131. See supra note 18 and accompanying text.9 GILMORE PUBLISH READY (12.29) (DO NOT DELETE) 12/29/2017 3:44 PM
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same way lyrics were deemed recorded in McCollum,132 imminence will not
be automatically satisfied by the use of randomly spawning in-game
incentives. This would require plaintiffs to prove that augmented reality
companies are more active in how they entice players to move around their
surroundings for imminence to be present. For example, if a plaintiff can
show a Niantic employee manually inserted each pokémon in Pokémon GO
for individual players, imminence would be satisfied.
While this first plausible solution is logical and is familiar to incitement
jurisprudence,133 it may provide an unintentional loophole for augmented
reality companies to actually incite players while still avoiding liability.
More specifically, if individual algorithms were set for individual players,
those algorithms would be deemed sufficiently “fixed” because they are
implemented in the augmented reality context, regardless of whether they are
targeting players to harm them. For example, Niantic could set an algorithm,
spawning pokémon for a single person, drawing her towards major freeways
with the desire to harm her. Niantic would still not satisfy the imminence
element in this context simply because it records its expression through the
use of an algorithm. Thus, this solution may cause additional unintended
consequences.
B. Intent Solutions
The better solution, which provides adequate First Amendment
protection to augmented reality companies, is through the intent element of
incitement. This note discusses two ways that the intent element can be
tailored to appropriately strengthen the incitement safeguard for augmented
reality companies. First, to allow intent to be proven only when the
augmented reality company desired the harm. Second, to reinterpret what it
means when an augmented reality company is substantially certain that harm
will result from its product. As will be seen, the former would be easier to
implement, however the latter is more fruitful.
An augmented reality company utilizing the same elements as Pokémon
GO in its game automatically satisfies the intent element of incitement
because it is substantially certain that harm will result from its game. When
an augmented reality company utilizes the planet Earth as its game’s venue
while encouraging those players to simultaneously move and focus on their
phones, it is substantially certain that harm will result.134 Moreover, any
augmented reality company using the same problematic elements of
132. McCollum v. CBS, Inc., 249 Cal. Rptr. 187, 194-95 (Ct. App. 1988).
133. See id.
134. See supra Parts I and II.9 GILMORE PUBLISH READY (12.29) (DO NOT DELETE) 12/29/2017 3:44 PM
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Pokémon GO would find itself in a similar situation.135 Abrogating the rule
governing when intent is proven in this context heightens the level of
protection augmented reality companies would receive, making it less likely
for plaintiffs to prove those companies intended the harm their players
endured.
But if incitement’s intent can only be proven when an augmented reality
company desired the harm, these pit falls in the current incitement standard
are immaterial. As discussed earlier, the augmented reality technology used
in Pokémon GO is problematic because it proves Niantic is substantially
certain that harm will result from the content of its product.136 Eliminating
substantial certainty would require a plaintiff to demonstrate that Niantic, or
another company using similarly problematic elements in its game, desired
the harm that resulted thereby showing that it intended the harm.137 The result
of this change would be that “intent” could not be inferred from Pokémon
GO’s elements alone. While this approach is appealing in its simplicity and
effectiveness, it is not perfect.
By eliminating substantial certainty as a way of proving augmented
reality companies intend to incite imminent lawless action, augmented reality
companies will have more protections than other entertainment companies.
Namely, augmented reality companies will retain First Amendment
protection when the content of their games demonstrate they are more
substantially certain that harm will result from their product than Pokémon
GO is. For example, a company could have tips that pop-up indicating that
rarer incentives can be found in dangerous places like next to live wires in
electrical power plants. Absent evidence the company desired players to go
in these power plants, an injured player could not show the company intended
the harm that resulted from a potential electrocution. This is an absurd result
because such areas are so dangerous that harm is not just substantially, but
virtually certain to result.
Thus, the last alternative is to raise the substantially certain bar to virtual
certainty. “Virtual certainty” is used in Fourth Amendment jurisprudence as
evidenced by the Sixth138 and Eleventh Circuits.139 These cases interpreted a
way of determining whether a government agent is within the bounds of the
private search doctrine, an exception to the Fourth Amendment warrant
135. See supra Parts I and II.
136. See supra Part II.
137. See supra notes 64-65 and accompanying text.
138. See United States v. Lichtenberger, 786 F.3d 478 (6th Cir. 2015).
139. See United States v. Sparks, 806 F.3d 1323 (11th Cir. 2015).9 GILMORE PUBLISH READY (12.29) (DO NOT DELETE) 12/29/2017 3:44 PM
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requirement.140 Namely, law enforcement does not need a warrant to search
electronic containers when it is virtually certain that the law enforcement will
not learn facts outside what the private searcher learned.141 Thus, when there
is a mere possibility that new facts outside the private search can be
discovered by the subsequent search, there is a Fourth Amendment
violation.142
Applying virtual certainty to the augmented reality context, intent for
incitement is fulfilled when a reasonable augmented reality company is
virtually certain that its consumer will be injured by playing the game.
Moreover, an augmented reality company does not intend the harm if there
is a mere possibility that a player could play the game in the way that the
particular plaintiff did without being injured. For example, there is a
possibility that a player would not get hurt in searching for pokémon in an
active electrical power plant, and thus, intent would not be present. However,
there is no possibility for a Pokémon GO player to jump on an electrical coil
at an active electrical power plant without injury, and thus intent would be
fulfilled if the game advocated for that action.
The virtual certainty approach would make it much harder to prove that
an augmented reality company intended to incite. This approach provides
augmented reality companies their fundamental First Amendment protection
while still remaining susceptible to fulfilling incitement’s intent element
without a showing the company desired the harm. Thus, reinvigorating the
policy concerns that drove incitement’s manifestation in the first place.143
Moreover, adopting this approach would allow courts to find refuge in
established jurisprudence opposed to creating carve-outs in concretely
established tort law.
IV. CONCLUSION
Augmented reality companies using Pokémon GO’s basic elements will
likely be vulnerable to tortious liability due to the law’s failure to adapt to
140. See Lichtenberger, 786 F.3d 478; see also Sparks, 806 F.3d at 1334-36; see generally Orin
Kerr, Sixth Circuit Creates Circuit Split on Private Search Doctrine for Computers, THE
WASHINGTON POST (May 20, 2015), https://www.washingtonpost.com/news/volokh-
conspiracy/wp/2015/05/20/sixth-circuit-creates-circuit-split-on-private-search-doctrine-for-
computers/?utm_term=.a6dbe0888bbd.
141. See Lichtenberger, 786 F.3d at 488-89; see also Sparks, 806 F.3d at 1336.
142. Lichtenberger, 786 F.3d at 488-489 (finding the government agents exceeded the scope of
the private search when they viewed photos on a cellphone that were possibly not viewed by the
private searcher).
143. See supra notes 45, 54 and accompanying text.You can also read
